ILR Eligibility for Tier 2 dependant

[glengyle]

Hello,

I was wondering if someone can elaborate me the meaning of following text taken from page 34 at website: https://www.gov.uk/government/uploads/s ... ts-v12.pdf

"Combining leave for ILR: If the applicant has previously been granted leave in another category of the Immigration Rules as the spouse, civil partner, unmarried or same-sex partner of the same main applicant (that is, the PBS migrant), that leave can be combined with leave granted as a PBS dependant to count towards the probationary period for ILR, provided their most recent leave has been as the partner of that PBS migrant. Leave granted for any other reason cannot be combined."

I wanted the meaning in relation to ILR scenario for following:
a) Arrived in UK in Jan 2009 as Tier 4: Student dependent valid till Jan 2010 (1 year)
b) Extended visa in UK from Jan 2010 as Tier 4: Student dependent valid till Feb 2011 (1 year)
c) Applied and granted in India from Jan 2011 visa for Tier 4 general student valid till June 2015 (4.5 years)
d) Applied and granted in UK from July 2015 visa for Tier 2 PBS dependent valid till July 2016 (1 year)
e) Applied and granted in UK from Aug 2016 visa for Tier 2 PBS dependent valid till July 2018 (2 year)

Total time completed in UK 9.5 years (has a break of more than 180 days) so is not eligible for ILR via 10 years long residency route. Has always held a valid UK visa throughout the continuous 9.5 years in UK. Has been married with the same partner throughout this continuous 9.5 years. Have cohabitation proof for the first 2 years and last 3 years (when on dependent). Have weekend travel tickets (2 times every month) of sustained relationship during the 4.5 years student visa period. Also have a child born in this relationship who is currently in UK on a dependent visa.

Time completed as dependent in UK 5 years (2 + 3). Would the dependent (of the same main PBS applicant) be eligible for ILR via 5 years dependent route?

NOTE:
i) Please take into account that the text does not use the word "Continuous" anywhere.
ii) Also the term "previously" means "At a previous or earlier time; before" but does not need to be in sequence/order/following immediately before the current one.

Am I correct in interpreting the meaning of the text as "PBS dependent has completed the probationary period (5 years) to make a successful ILR application?"

Looking forward to early replies.

Regards

[CR001]

Am I correct in interpreting the meaning of the text as "PBS dependent has completed the probationary period (5 years) to make a successful ILR application?"

No you are not correct. You need 5 continuous years as a PBS Dependent to qualify for ILR.

By applying for your own student visa and then applying for tier 2 dependent again, your clock for ILR based on 5 years residence reset to zero.

When did your spouse get Tier 2 General visa initially?

[glengyle]

Thank you for quick reply. Appreciate it.

No you are not correct. You need 5 continuous years as a PBS Dependent to qualify for ILR.
As there is no mention of the word continuous is it wrong to interpret the meaning the way I have? My understanding is the probationary period is to ascertain that the relationship is genuine and sustainable and is not just for sake of exploiting the immigration rules.

By applying for your own student visa and then applying for tier 2 dependent again, your clock for ILR based on 5 years residence reset to zero.
I am not getting the idea why would this provision be made in the guidance rules then?

When did your spouse get Tier 2 General visa initially?
It was from June 2013.

[CR001]

The immigration rules clearly state the requirements. The rules trump the guidance notes.

319E(d)(ii)(b)

(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which the applicant must:
(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,
(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),

What are the dates that you had the more than 180 day absence??

[glengyle]

The immigration rules clearly state the requirements. The rules trump the guidance notes.
Thank you for pointing it out.

319E(d)(ii)(b)
(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which the applicant must:
(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,
(b) have spent the most recent part (they are using the word “PART” which I am interpreting/understanding as recent section/portion/fragment) of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),

What are the dates that you had the more than 180 day absence??
From June 2013 and back to UK in April 2014.
Would in this case absence of more than 180 days be disregarded [as per rules from 11th Jan 2018] as am applying for ILR via PBS dependent route? Also, during this entire period of absence I always held a valid and continuous UK visa which continued even after returning back to UK. I finished all the laboratory based work required for PhD studies and left UK only when I could start PhD thesis writing. During the period spent away from UK I continued to be enrolled for PhD studies and had to do video chat with PhD studies supervisor once every month to report on progress with PhD thesis writing. This monthly communication with supervisor was a clause put forward by the University as a requirement to continue enrollment for PhD studies and in case enquired by UKVI (then UKBA) to be submitted as a proof of continued enrollment for PhD studies. PhD supervisor had to complete course progress forms during this period mentioning progress in thesis writing.The most important reason for staying in India was doctor’s advice to restrict air travel. Also, availability of extended family to support after having our baby was crucial to focus more on thesis writing.

Alternatively: Main applicant has just spent 5 years of Tier-2 visa and can get an extension of one more years (maximum allowed time on Tier-2 is 6 years). That way I too can get 1 more years Tier-2 dependent extension which would take me to July 2019 and thus exclude the 180 days break/absence during immediately continuous 5 years qualifying period on the date of application i.e. on April 2019?

[CR001]

If your spouse gets ILR, you can still extend your current visa.

You will qualify for ILR with 5 years PBS dependent counting from July 2015 as you fall under the new 5 year residence rules (post July 2012).

immigration-for-family-members/dependan ... 14832.html

If you want to risk applying sooner if you believe you qualify, please do and keep us updated of the outcome. If you are refused for ILR, you will lose your fee and if your dependent visa has expired (assuming a postal ILR application), then you have a problem.

My understanding is that for ILR based on 5 years residence as a PBS Dependent, your 4.5 years on your own student visa, effectively cancels out the first part of your original PBS dependent stay.

[meghan]

Hi glengyle

Did you make an application as a dependent yet? It would be great if you could let me know. I also have similar situation.

Thanks!